¶1delivered the opinion of the court.
¶2These parties were adjoining land-owners. In 1858 the defendant erected a rail fence upon a line dividing his lands from the lands of the plaintiff, as he supposed and believed. A subsequent survey, however, disclosed the fact that the fence was built upon the plaintiff’s land, a rod or more from the true line of division separating the two lots. The defendant thereupon removed the fence back to its true position. The fence having been built upon the plaintiff’s lands, he claims the rails composing it as his property, and sues for their value. The defendant claims to have placed the fence where it was originally constructed, with the knowledge and upon the license and permission of the plaintiff, and sets up these facts in bar of the action. Issue was joined on these averments. The trial resulted in a verdict for the defendant, and the plaintiff brings the case here by successive appeals.
¶3At the trial the plaintiff asked instructions based on the theory that the erection of the fence upon the plaintiff’s land operated to vest the title thereto in him. These instructions were refused; *370and the court instructed the jury, at the instance of the defendant, to the effect that if they found from the evidence that the fence was originally placed on the plaintiff’s lands through mistake, and upon the license and permission of the plaintiff, and that the defendant removed it back to the true line in a reasonable time after the error was discovered, his acts therein were justifiable, and that the verdict should be in his favor.
¶4This, for substance, is the error complained of. The plaintiff’s theory of the faw is not well founded. The principle adopted by the court is legally correct, applicable to the case, and grounded upon considerations of the clearest equity and justice. (See 1 Washb. on Real Prop., 3d ed., p. 542, § 2; Smith v. Goulding, 6 Cush. 155; Fuhr v. Dean, 26 Mo. 116; Chouteau v. Goddin, 39 Mo. 229.)
¶5the judgment is affirmed.